High technical skills are now an essential requirement in a multitude of cases concerning criminal proceedings, such as events related to crimes to protect health and safety in the workplace, environmental crimes or even corporate and bankruptcy crimes. In this context, “scientific knowledge” is utterly crucial for all the figures involved, from lawyers to prosecutors, to judges.

Having to deal with issues that are very technical and far from legal competence per se puts criminal law operators in the condition of expanding their culture and training. They also have to rely on additional specialists for specific subjects, appointing them as experts or partisan consultants during trials.

And it is precisely the confrontation between legal professionals and “technical” experts – through the hearings of the latter and the acquisition of their reports – that has generated a complex debate on the role of scientific evidence in law.

What does scientific proof in the judicial field mean?

The Legislative Decree n. 231/2001, which introduced the “regulation of the administrative liability of legal persons, companies and associations, including those without legal personality, under article 11 of Law n.300, September 29, 2000”, turns twenty.

It’s a crucial anniversary because this legislation has allowed the Italian legal system to overcome the principle of “societas delinquere non potest”, that is, “a company cannot commit a crime”.

Although the Legislative Decree n. 231/2001 was initially applied only to some willful crimes, over time, the legislator has expanded its range of action by including further “predicate offenses”, i.e., the types of offenses that can cause the body’s liability. To date, this particular category includes about five hundred heterogeneous offenses, such as crimes against the Public Administration (the first to be introduced), corporate and environmental crimes, crimes related to accidents at work, IT crimes and, more recently, tax crimes.

The extension of the applicability of the Legislative Decree n. 231/2001 has sensitized companies – especially those of medium-large size – to implement efficient internal compliance systems resulting from adopting specific Organizational Models. The latter must be constantly updated while appointing the Supervisory Body guarantees the verification of the application by the model’s recipients, as well as the model’s adequacy and effectiveness.

Organizational Models: a valuable tool for avoiding the responsibilities of a crime under the Legislative Decree n. 231/2001

Companies that adopt Organizational Models have an essential tool at their disposal to avoid liability for a crime according to the Legislative Decree n. 231/2001. Several cases addressed by the jurisprudence and ending with the acquittal of the company precisely because its Organizational Model was valid confirm such a thesis. However, this is a topic that we will discuss more thoroughly in the future.

It is also important to point out that Confindustria recently published its updated guidelines regarding the creation of Organizational Models, hoping to “inspire companies in the construction of their model and, for the jurisprudence, to enhance the organizational efforts made by the companies to align themselves with the provisions of the Decree 231.”

The aforementioned Supervisory Body actively deals with the Legislative Decree n. 231/2001, which is why more and more medium-large companies are equipping themselves with such entity, in view of the growing attention the case law shows in relation to the Body’s centrality in internal control systems.

More specifically, the Supervisory Body receives the so-called “information flows” from the various corporate functions. It then sends the reports to the top management, the Board of Directors and the Board of Statutory Advisors. Hence, the Supervisory Body provides these entities with a constantly updated representation of the state of health of the corporate control system.

It is also worth reporting a recent sentence by the Court of Milan on the well-known Monte dei Paschi di Siena case, which saw the bank’s Chairman and Chief Executive Officer being convicted of false corporate communications and stock manipulation. The fine was 800 thousand euros.

The court was unequivocal regarding the liability of the entity, explaining that, in the analyzed timeframe, “the Supervisory Body, despite having penetrating powers of initiative and control, […] substantially omitted the necessary investigations (which were functional to the prevention of repeated and undisturbed crimes), despite the relevance of the issue as per the inspections of the Bank of Italy (of which the SB was aware) and has even risen to judicial challenge blaming BMPS[…]”

And again: “The Supervisory Body witnessed the events passively, limiting itself to insignificant acknowledgments, in the spiraling of events (from the alarming press reports to the judicial debacle) that a more prudent exercise of control would have averted. Thus, unfortunately, it was not and all that remains is to detect the body’s omitted (or at least insufficient) supervision, which founds the organizational fault referred to in article 6, Legislative Decree n. 231/2001.”

This sentence again confirms the centrality of the Supervisory Body in monitoring and verifying the adequacy and effectiveness of the corporate compliance system.

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In our blog, we have previously dealt with copyright, exploring its definition and duration and its scope of protection.

The term “Copyright” identifies a legal institution that aims to protect authors and their creations, ensuring various patrimonial and moral rights for the original author. Among these, the most common include the recognition of the authorship and the right to receive compensation whenever the work in question is used or exploited by third parties.

The most conventional creative works covered by copyright are literary, dramatic, educational and religious compositions, musical and theatrical ones, choreography, pantomimes, films, photographs, architectural works, computer programs and even databases. All these works are protected and belong to their respective author, with a system structured in such a way as to ensure a share (or a part of the intellectual property on the work) to those who contribute to their creative process (the so-called co-authors), especially if the contribution provided by each is essentially indistinguishable.

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Copyright violations and possible consequences

Copyright infringement occurs when a protected work is used without obtaining appropriate authorization from the owner of the rights and free use of the work itself is not permitted.

Different measures and sanctions will be applied depending on the seriousness of the offense. Such sanctions may be requested either by the copyright holder or the administrative or judicial authority.

Especially in consideration of the vulnerability of copyright during the current “digital era”, we are now faced with frequent and massive violations, such as the sharing and dissemination of large quantities of protected materials on online platforms.

It is precisely in this context that the Criminal Law of Copyright proves to be fundamental.

Offenses against copyright and the related sanctions are governed by the second section of Title III and Chapter III of the copyright law itself. Generally, offenses relating to the violation of copyright can be prosecuted ex officio, with a limitation period of six years, provided for the crimes.

Copyright Criminal Law aims to protect:

• The protection of the rights of economic and moral use, (Article 171) whose infringement is punished with a fine from 51 to 2065 euros and which includes reproductions, transcriptions, dissemination, sale, performances, performances of the protected work.
• The protection of copyright on software and databases (Article 171-bis) following the abusive duplication of supports not marked by the SIAE for profit, import, distribution, sale, possession for commercial purposes, duplication, possession, reproduction, etcetera. Penalties range from six months to three years imprisonment to a fine ranging from 2582 to 15,493 euros; (art.171-ter) if the offense is committed for non-personal use, duplication, reproduction, transmission or public dissemination of an intellectual work intended for the television, cinematographic circuit, or other illegal activities identified by the law, with penalties ranging from imprisonment from six months to three years and from one to four years (paragraph 2) to a fine ranging from 2582 to 15,493 euros.

At the same time, the omission of the SIAE communication, the production, sale, import, promotion, installation, modification and use for fraudulent purposes of equipment or parts of equipment suitable for decoding audiovisual transmissions with conditional access carried out via ether, via satellite, via cable, in both analogue and digital form are considered Copyright violations and therefore punishable by Criminal Law.

The latter offense is punishable by art. 171-octies with imprisonment from six months to three years and a 2582 to 25.822 euros fine.

Stella Law Firm: specialists in Copyright Criminal Law

Stella Law Firm has a long experience in Copyright Criminal Law and in the management of various criminal offenses relating to trademarks and patents.

The firm’s know-how also relates to the criminal protection of industrial secrets, both in the judicial and extra-judicial areas, regarding its various forms of possible abuse and exploitation; and computer, television and film piracy offenses.

Our customers turn to us to solve the most varied cases regarding:

• Counterfeiting, alteration or use of trademarks and patents
• Disclosure of scientific and commercial secrets
• TV piracy
• Movie piracy

Ask now for advice from our experts or book a meeting at our offices.

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We often hear about copyright, but the underlying concept of copyright may not always be clear: what exactly is it about? Does it have a specific duration? And what does it aim to protect?

In order to adequately answer these questions, we will obviously have to start with the definitions.

The term “copyright” is used to identify a legal institution whose purpose is to provide protection to authors and their work by granting the original author various property and moral rights. Among these, the most common ones are the recognition of authorship of the work and the right to receive compensation whenever the work in question is used or adopted by third parties.

Copyright according to the SIAE

SIAE, the well-known Italian Society of Authors and Publishers, defines creative works as a precious asset, “expression of an intellectual work that the law protects like any other work”, and explains that copyright is born, in fact, at the very moment when the work comes to life. According to SIAE, this right “ensures compensation for intellectual work and protects the birth and life of intellectual works”.

As far as the Italian copyright law is concerned, it refers to Law no. 633 of 22 April 1941 (LDA) and subsequent amendments, while in several foreign countries different models will be adopted that refer instead to the so-called “copyright”.

What does copyright protect?

Which ones are then the beforementioned moral and intellectual property rights protected by this legal institution?

To put it in a clear and straightforward way, these rights can be divided into two large families:

• Moral rights, i.e. those protecting the author understood as a person and which reverberate in the possibility of claiming the authorship of the work, in the right to the integrity of creation, in the right of rethinking and in the right of unpublished works.
• Intellectual property rights i.e. related to the economic aspect of the work. These rights apply when the work is adopted by third parties, i.e. published, reproduced, transcribed, translated, performed, represented, recited or communicated to the public, rented and lent. In all these cases, the author is entitled to remuneration.

Having clarified this important difference, it must however be clarified that in the case of economic use of the work, the rights may be definitively assigned to third parties, but without the original author being stripped of their moral rights, which remain untouchable.

Which works are covered by copyright?

The works covered by copyright are very vast, and a complete list can be found in articles 1 to 5 of Law n. 633 of 1941.

Generally speaking, this legal institution covers all artistic works having a so-called “creative character”, i.e. which are new and original.

These include literary work of any kind, musical work and compositions, work related to sculpture, drawing and painting, choreographic and theatrical work, cinematographic work, photography, technical-industrial drawings and even databases and software. Copyright also includes TV formats, games and prize competitions, television programmes, creative commercials and even recipe books.

One last curiosity: translators also boast special copyrights, as their contribution involves creative and intellectual elaboration of the original work.

How long does copyright last?

As mentioned above, moral rights related to copyright are not subject to a time limit. On the contrary, intellectual property rights have a well-defined duration.

Specifically, reference is made in this case to Legislative Decree no. 22 of 21.02.2014, implementing Directive 2011/77/EU and amending Directive 2006/116/EC: with this legislation, the duration of intellectual property rights has increased from the previous fifty years from the author’s death to the current seventy.

The reason for this change was explained at the time directly by the Legislator, who pointed out that fifty years of protection was insufficient to “protect the performance for the lifetime of artists”. The extension to seventy years was therefore justified by a desire for protection “at a time in life when artists could face a drop in income”.

It is clear that extending the intellectual property rights up to seventy years after the death of the author of the work also allows their heirs to benefit almost in full, while the “creator” of the intellectual work will take economic advantage of their rights for their entire lifetime.